Article about Environmental cases

Last year was a disastrous one for environmental litigants in the Scottish Courts. The second half of the year saw the widely reported failure of attempts to stop the Aberdeen Ring Road, a new coal-fired power station at Hunterston and the St Andrews West development plan. The third of these highlighted a major problem in such cases when the applicant Mrs Penny Uprichard had expenses of about £173,000 awarded against her. The result is a sorry story that reflects badly on our legal system and its ability to cope with environmental issues at a time when the countryside is faced with numerous applications for developments such as power lines, wind farms, opencast mines and fish farms and people are becoming more environmentally aware. Unfortunately these three cases were not unusual. One has to go back to July 2000 to find the most recent successful environmental judicial review, when the RSPB managed to stop the Scottish Ministers from granting licences for the shooting of barnacle geese on Islay. In the period from then to date there have been fewer than a dozen reported cases, all of which have failed. This failure rate raises the suspicion that something is badly wrong. Further, on the face of things it looks as if the Scottish Government could be in breach of its obligations in terms of the Aarhus Convention, which was signed in 1998 and eventually ratified by the United Kingdom Government in 2005. The Convention was designed to give members of the public access to information about environmental matters and to allow persons showing “sufficient interest” access to court to challenge official decisions that seemed to threaten the environment. Further, in relation to litigation it provided that a remedy should be “fair, equitable, timely and not prohibitively expensive.” Both of these expressions have been giving rise to problems in court. Regarding “sufficient interest” it’s trite law that in order to get a case into court one has to show some interest in the subject matter. The Scottish courts usually refer to this as “title and interest,” the two being very closely linked. This gives no difficulty in the usual case where financial or property matters are being litigated, where there will be an obvious financial benefit in the case of success. In a recent case Lord Emslie declared “Mere busybodies should not be permitted to take up court time, and cause expense to others, where the matters in issue, and indeed the outcome of proceedings would not practically affect them in any relevant manner….” That case didn’t concern the environment and he did go on to say “But in other cases, especially those with a public law element, the qualifying relationship may be of a rather broader and more general nature ….” In pure environmental cases the concept is much more problematic. If for example I am concerned with Marine Scotland granting licences for the shooting of a protected species such as seals, when other alternatives are open to a fish farm, such as the use of special anti-predator nets, but don’t live near where this is going on or operate a wild life tourism business, do I have an interest? In the present state of Scots law, I’m probably a mere busybody. Regarding the expense of going to court, which Aarhus says must not be “prohibitively expensive” the English courts started to grant discretionary “protective costs orders” in environmental cases and the Scottish courts have followed suit. Unfortunately having taken this step they immediately wiped out the benefit by imposing a “fair and just” test and insisting on an assessment of the means of the particular litigant. In principle this seems wrong, on a number of grounds. Environmental litigants are almost never acting alone. Instead they form campaign groups, typically comprising a central core of activists and a much larger crowd of more or less enthusiastic followers. Imposing a subjective test seems to mean that if they were to litigate as a group the resources of all would require to be cumulatively assessed, with obvious results. On the other hand for them to select a particularly impoverished one of their number to carry the banner seems to me dishonest, indecent and imprudent. It is dishonest because it obscures the true nature of the case and presents it as an individual, not a community, issue, indecent because it encroaches on the dignity and privacy of the person selected and imprudent because that person is then solely and totally in charge of the case and can, for example, call a halt if the stress becomes too much. This is borne out by the recent cases. Mrs Forbes’ case against Donald Trump over his golf course failed because she was held to have had no title and interest. She had failed to object to Trump’s planning application and was maybe selected by the local campaign group to raise the case precisely because she had few assets. Because of her lack of interest she got no protection from Aarhus and Trump’s expenses awarded against her. William Walton raised his action against the Aberdeen Ring Road in his own name, but was backed by Road Sense, a group of about 560 campaigners, who had already raised and spent about £250,000 on the previous public inquiry. He agreed to disclose his means (he was a lecturer, of average means) and the court granted a Protective Expenses Order (“PEO”) with a cap of £40,000. Marco McGinty had no assets, was unemployed and was predictably refused legal aid for his challenge to the new Hunterston power station. His action was supported by Scottish Wildlife Trust and there had been 16,000 objections to the scheme. Lady Dorrian capped his expenses at £30,000, a discretionary decision for which no detailed reasons were given. His action then failed because his only interest was as a keen bird watcher, who frequently walked over the area. As noted above Mrs Penny Uprichard went down for £173,000 expenses when her case failed on the basis of lack of interest. She had challenged the Council’s development structure plan for St Andrews West and although litigating alone it was never disputed that she also represented others, who for example had given her pledges totalling £33,000. Lord Gill stressed inter alia that she lacked a patrimonial interest in that she didn’t live in the precise area and owned no property there, also she had failed to disclose her capital position. He declared “Those who challenge decisions of this nature enter into litigation with their eyes open. They have to expect that if they should fail, the normal consequence will be that they will be liable in expenses.” Ironically, had she owned property in the area she would have got a hearing, but wouldn’t have been an environmental litigant, so Aarhus would still not have applied. You can fail its test by having too much as well as too little interest. A strange aspect of our country is that rules of great importance are sometimes made not at Holyrood, but by a completely unelected body up the road. The Court of Session has a Rules Committee comprising three judges, five advocates and five solicitors, who meet behind closed doors two or three times a year. For some time they have been toiling over draft rules on protective expenses orders and there are signs that the European Commission has not been too pleased with their efforts. It seems that their first draft was found wanting because it retained both the subjective means test and judicial discretion. The Commission suggested that there should be a limit in all cases, which could be lowered but not raised, with an absolute cap of £25,000. Their response was to accept this but decide that the cap would apply to individuals only, so for example campaign groups would face unlimited liability and it would be pointless to obtain pledges as they would be taken into account. Meanwhile various other bodies have been taking an interest in the problems described in this article. In the Supreme Court Lord Hope expressed the view that the expense test should be an objective one, with a limit of £5,000 on all cases. He referred the issue to the European Commission for guidance on the principles. Lord Gill’s own civil justice review considered the problem and found “The current restrictive approach of Scots law to title and interest to sue makes it difficult for campaigning groups to bring proceedings to test the lawfulness of controversial policies or decisions of public bodies. The law should be amended so that the test of standing should be whether the applicant has demonstrated a sufficient interest in the matter to which the proceedings relate…. There should be an express power to enable the Scottish courts to make special orders in relation to expenses of the kinds referred to, in cases raising significant issues of public interest.” Finally this month the Scottish Government has come aboard with a consultation on “Legal Challenges to Public Authorities under the Public Participation Directive,” which runs until 3 April. The provisional view of the government is that there should be a cap of £5,000 on an adverse award of expenses, but that where a campaigner is successful the expenses awarded should also be capped, at £30,000. It could be that matters are looking up for the environment and its supporters.